Exploring the Impact of the Equality Act 2010 on Intersectionality

Equality

The Equality Act 2010[1] was a groundbreaking piece of legislation at its time for simplifying and creating new protections for people with different characteristics. The act simplifies the protections using protected characteristics and makes responsibilities and obligations on others to ensure that people with those characteristics are not discriminated against.[2] Intersectional identity, also known as intersectionality, was first introduced by Kimberle Crenshaw.[3] The concept can be likened to a car hitting individuals from different directions simultaneously, resulting in a complex, overlapping injury.[4] In equality law, this relates to having multiple protected characteristics, such as being a woman and old. This essay will examine the concept of intersectional identity and how the Equality Act[5] works to protect it, but also where it falls short and how it can be improved to create substantive equality. Despite its current limitations, the Equality Act[6] holds the potential for significant improvement, offering hope for a future where intersectional discrimination is effectively addressed. Overall, though, the act does not protect individuals with an intersectionality claim.

The Equality Act 2010[7] recognises nine different characteristics: age, disability, gender reassignment, marriage, pregnancy, race, religion, sex and sexual orientation.[8] The act takes a single-axis approach, looking at each characteristic separately, which requires an individual claim (ignoring the idea that a claim might be unique based on a combination of characteristics). The issue with this is that a claim might be based on intersectionality, where an applicant might be discriminated against because she is an elderly woman, not just because she is elderly or a woman. Separate claims must be brought against both characteristics, which would take time and money. In the act, section 14 allows for dual discrimination (where two characteristics can be discriminated against).[9] This is a step in the right direction as it allows for one claim, though this section is not currently in force, which means it cannot be used in a claim. The primary reason it is not in force is that the act already protects individual characteristics and would become complicated for businesses.[10] Similarly, it only protects dual characteristics. In some cases, you might have more than two characteristics being discriminated against, which does not protect you. This shows that the Equality Act[11] does not have the legislative tools to address intersectionality appropriately and puts a more significant burden on the plaintiff who is already vulnerable due to multiple protected characteristics.[12]

Within the UK judiciary, numerous cases have addressed intersectionality within the legal space. In Lewis[13], the Employment Tribunal recognised that different experiences could come from having an intersectional identity rather than just a single characteristic. This highlights that the court can recognise intersectional discrimination with multiple factors and rule on it. However, this is one of the few cases in which the court has recognised it. In Bahl v Law Society,[14] the lower court held that intersectional discrimination was successful. Still, the Court of Appeal rejected the reasoning. It stressed that there was a need to split up the grounds of race and sex and, therefore, have separate evidence for each. This showed the higher court rejected the possibility of intersectionality in the legal system. The court specifically said that race and sex could not be combined into one claim. It is a higher court that creates a precedent to not look at intersectionality. It was likely done as the judges did not want to engage in judicial activism. This shows that the legislation is quite restrictive and requires that each characteristic be looked at separately rather than together, and the courts are reserved for expanding the scope. This fails the victim as it fails to reflect her unique characteristics that led to the oppression taking place and does not reflect what equality law is about, the individual themselves. This principle switches again in Hewage[15] in the Supreme Court, where the claimant was not required to split her claims into separate ones for each of the characteristics she was proving against. The court did not specifically name intersectional discrimination but recognised its principle. This shows that the courts are unclear and not well-versed in handling these claims, and the legislation needs to be updated to reflect the new cases coming before the tribunals and the courts. These different approaches create confusion and make it harder for an applicant with an intersectional identity to uphold their rights under the act.

Similarly, in other jurisdictions, the idea of intersectionality is still being understood. Some jurisdictions, though, have embraced the idea. For example, the European Court of Human Rights in B.S. v Spain has explicitly acknowledged the idea of intersectionality in the judicial system.[16] The court took a holistic approach to determining discrimination by looking at an overall picture rather than individual characteristics alone. This differs from the UK approach, which specifically focuses on one characteristic at a time. In the United States of America, they have a mixed record. In the case of Judge v Marsh, the district court addressed two intersectional categories under one claim.[17] In Lam v University of Hawaii on appeal, the court noted that it is “a significant error that the district court below-treated race and sex discrimination separately.”[18] Research in the USA has also shown that a lack of diversity on the bench contributes significantly to this issue.[19] This is similar to the approach in the UK, where courts have struggled to apply intersectionality due to a lack of a statutory instrument. On the other hand, in Canada, there has been a progression in intersectionality within the courtroom. Under the Charter of Rights and Freedoms[20], the act stipulates prohibited grounds for discrimination, though it does not cover intersectional discrimination, like the UK. Though there has been development: in the case of Baylis-Flannery v DeWilde (No 2), the Human Rights Tribunal in Ontario described it as “a fact-driven exercise that assesses the disparate relevancy and impact of the possibility of compounded discrimination”.[21] This shows that discrimination on multiple characteristics will have different effects, and those need to be considered, which could be influential in UK jurisprudence as a way to handle these claims. Other jurisdictions are like the UK because they are reluctant to protect against intersectional discrimination. However, there have been progressions through the courts to help incorporate intersectional claims, and it shows that the UK is not alone in not protecting the concept effectively.

The idea that intersectionality is protected under the Equality Act is questionable. While there have been developments in case law and through the concept of section 14, there is still not a statutory right or mechanism to bring a claim based on intersectionality. Each characteristic must be brought before the court separately with separate evidence, and both will not be considered at the same time, undermining the collective experience that one may face from having a unique identity not recognised under the law. To rectify this, section 14 should become enforced to allow for dual discrimination claims (rather than a basis in case law due to the public interest in the matter) and judicial training and guidance from human rights organisations. This will ensure that intersectionality is better understood and there is a precedent and standard for how it operates, improving individuals' protections under the Equality Act 2010.[22]

Bibliography:

Legislation

Canadian Charter of Rights and Freedoms, s 15.

Equality Act 2010 (UK).

Cases

Bahl v Law Society [2004] EWCA Civ 1070, [2004] IRLR 799.

Baylis-Flannery v DeWilde (No 2) (2003) 48 CHRR D/196 (HRTO).

B.S. v Spain (App no 47159/08) ECtHR 24 July 2012.

Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR 1054.

Judge v Marsh 649 F Supp 770 (DDC 1986).

Lam v University of Hawai’i 40 F 3d 1551 (9th Cir 1994).

Lewis v Tabard Gardens TMC Ltd [2020] UKET 2202172/19.

Books and Articles

Collins T and Moyer L, ‘Gender, Race, and Intersectionality on the Federal Appellate Bench’ (2008) 61(2) Political Research Quarterly 219.

Crenshaw K, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139 http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8.

‘Intersectionality and Higher Education’ (UCU, November 2022) https://www.ucu.org.uk/media/13458/UCU-intersectionality-guide/pdf/UCU_Intersectionality_guide_Nov22.pdf.

‘Intersectionality in Law and Legal Contexts: A Canadian Perspective’ (Women’s Legal Education and Action Fund (LEAF), 2020) https://www.leaf.ca/wp-content/uploads/2020/10/Full-Report-Intersectionality-in-Law-and-Legal-Contexts.pdf.

LSE Law Review, ‘Intersectionality: A Legal Principle, a Lens, or a Buzzword?’ (LSE Law Review, 23 January 2023) https://lawreview.lse.ac.uk/articles/10.61315/lselr.85.

Web Sources

‘The Labour Party Proposes Extensions to Discrimination Law’ (Clarkslegal) https://clarkslegal.com/insights/articles/the-labour-party-proposes-extensions-to-discrimination-law/.

‘Using Intersectionality to Understand Structural Inequality in Scotland: Evidence Synthesis’ (Scottish Government) https://www.gov.scot/publications/using-intersectionality-understand-structural-inequality-scotland-evidence-synthesis/pages/3/.

[1] Equality Act 2010 (UK).

[2] Ibid, s 4.

[3] Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139 http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8.

[4] Ibid.

[5] Equality Act 2010 (UK).

[6] Ibid.

[7] Ibid.

[8] Ibid, s 4.

[9] Ibid, s 14.

[10] ‘The Labour Party Proposes Extensions to Discrimination Law’ (Clarkslegal) https://clarkslegal.com/insights/articles/the-labour-party-proposes-extensions-to-discrimination-law/.

[11] Equality Act 2010 (UK).

[12] ‘Using Intersectionality to Understand Structural Inequality in Scotland: Evidence Synthesis’ (Scottish Government) https://www.gov.scot/publications/using-intersectionality-understand-structural-inequality-scotland-evidence-synthesis/pages/3/.

[13] Lewis v Tabard Gardens TMC Ltd [2020] UKET 2202172/19.

[14] Bahl v Law Society [2004] EWCA Civ 1070, [2004] IRLR 799.

[15] Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR 1054.

[16] B.S. v Spain (App no 47159/08) ECtHR 24 July 2012.

[17] Judge v Marsh 649 F Supp 770 (DDC 1986).

[18] Lam v University of Hawai’i 40 F 3d 1551 (9th Cir 1994).

[19] Todd Collins and Laura Moyer, ‘Gender, Race, and Intersectionality on the Federal Appellate Bench’ (2008) 61(2) Political Research Quarterly 219, 225.

[20] Canadian Charter of Rights and Freedoms, s 15.

[21] Baylis-Flannery v DeWilde (No 2) (2003) 48 CHRR D/196 (HRTO).

[22] Equality Act 2010 (UK).

This piece was originally submitted to the University of Exeter.